Beach v. M & N Modern Hydraulic Press Co.

• Citation: 428 F. Supp. 956
• Decision Date: 14 March 1977
• Docket Number: Civ. A. No. 75-92-C2.
• Court: U.S. District Court — District of Kansas
• Parties: Ronald Dewayne BEACH, Plaintiff, v. M & N MODERN HYDRAULIC PRESS CO., Defendant and Third-Party Plaintiff. MONROE CITY TOOL AND DIE CO. and Kuhlman Diecasting Company, Additional Defendants, v. MONROE CITY TOOL AND DIE CO. and Kuhlman Diecasting Company, Third-Party Defendants.

428 F. Supp. 956

Ronald Dewayne BEACH, Plaintiff, v. M & N MODERN HYDRAULIC PRESS CO., Defendant and Third-Party Plaintiff.

MONROE CITY TOOL AND DIE CO. and Kuhlman Diecasting Company, Additional Defendants, v. MONROE CITY TOOL AND DIE CO. and Kuhlman Diecasting Company, Third-Party Defendants.

Civ. A. No. 75-92-C2.

United States District Court, D. Kansas.

March 14, 1977.

COPYRIGHT MATERIAL OMITTED

Gene P. Graham, Graham, Paden, Welch, Martin & Tittle, Independence, Mo., Frank D. Covell, Mission, Kan., for plaintiff.

John J. Jurcyk, Jr., McAnany, Van Cleave & Phillips, Kansas City, Kan., for defendant M & N Modern Hydraulic Press Co.

Lynn M. Snelgrove, Logan, Alder & Wilson, Overland Park, Kan., Arthur W. Douville, Thomas P. Fay, Kansas City, Mo., for defendants Kuhlman Diecasting Co. and Monroe City Tool and Die Co.

MEMORANDUM AND ORDER

O'CONNOR, District Judge.

INTRODUCTION

Plaintiff became an employee of Kuhlman Diecasting Company on approximately January 23, 1975. On January 30, 1975, plaintiff was operating a hydraulic press manufactured by M & N Modern Hydraulic Press Company (M & N). While plaintiff had his left arm and right hand under the ramhead of the press, and while in the process of removing a trimmed diecasting, the ramhead descended upon his left arm and right hand. The left arm was amputated at the elbow and the plaintiff also lost at least part of four fingers on his right hand.

It appears to be undisputed that the plaintiff's injuries occurred in the course of his employment with Kuhlman Diecasting and that the injuries were within the scope of the Kansas Workmen's Compensation Act (KWCA). Thus, under K.S.A. § 44-501, plaintiff's exclusive remedy against his employer was to file a claim for compensation under KWCA. Plaintiff did so and recovered seventeen thousand dollars ($17,000.00).

Plaintiff then filed this suit against M & N. Diversity of citizenship under 28 U.S.C. § 1332 provides federal jurisdiction. Plaintiff asks for $1,500,000 in damages and relies upon alternative theories; (1) negligence under the doctrine of res ipsa loquitur; and (2) strict liability, alleging that the diecasting press is an unreasonably dangerous product which was defective.

M & N has caused the employer, Kuhlman Diecasting (Kuhlman), and Monroe City Tool and Die Company (Monroe), the alleged owner of the diecasting machine at the time of the accident, to be added as parties. First, M & N has joined Kuhlman and Monroe as third-party defendants, alleging that due to their negligence they may be liable to M & N for anything which M & N may be found liable to plaintiff. Second, M & N has joined Monroe and Kuhlman as original defendants under the Kansas Comparative Negligence statute K.S.A. § 60-258a(c).¹

Kuhlman has filed motions to dismiss both as to the original complaint and the third-party complaint. The basis for these motions is Kuhlman's contention that its liability is governed exclusively by K.S.A. § 44-501 and that it cannot be liable either to plaintiff or to M & N for anything other than the workmen's compensation claims which it has already paid. At the request of Kuhlman, the court stayed all further discovery pending rulings on these motions to dismiss.

Monroe has filed an answer to the original petition along with a cross-claim against M & N, and an answer to the third-party complaint along with a counter-claim against M & N. The cross-claim and counter-claim alleged that if Monroe is in any manner held liable to the plaintiff, it is entitled to indemnity for such liability from M & N. There are no motions now pending which relate to Monroe.

Finally Kuhlman and Employers Mutual Liability Insurance Company (who apparently paid the plaintiff the $17,000 on the workmen's compensation claim), have filed a motion to intervene. Under K.S.A. § 44-504 the employer and insurance company have a lien, up to the amount they have paid to the plaintiff in workmen's compensation benefits, upon any amount recovered by the employee-plaintiff from a third-party.

MOTION TO INTERVENE

There is no doubt that Kuhlman and Employers Mutual have the right to intervene in order to protect their statutory lien. The motion to intervene is therefore sustained. It is also clear, however, that their status as intervenors is very limited and does not allow them the privilege of participating at trial. Gorrell v. Kansas Power & Light Co., 189 Kan. 374, 369 P.2d 342 (1962). This is the plaintiff's lawsuit, and he should take it to the jury without any assistance or hindrance from the intervenors.

MOTIONS TO DISMISS

It has long been the law of Kansas that an employer's liability for injury to his employee is limited exclusively to compensation paid by the employer to the employee under the Workmen's Compensation Act. Where the injury and the (employer-employee) relationship fall within the scope of the act, the employer is not a proper defendant in a lawsuit seeking damages for the injury to the employee. Phoenix Indemnity Co. v. Barton Torpedo Co., 137 Kan. 92, 19 P.2d 739 (1933); Whitaker v. Douglas, 179 Kan. 64, 292 P.2d 688 (1956). K.S.A.1975 Supp. § 44-501 reads in pertinent part:

"Except as provided in the workmen's compensation act, no such employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable thereunder."

Even though the liability of the employer is so limited, the employee can still bring an action against and recover damages from a negligent third party. Pattrick v. Riggs, 148 Kan. 741, 84 P.2d 840 (1938); Barker v. Zeckser, 179 Kan. 596, 296 P.2d 1085 (1956). K.S.A. § 44-504(a) states:

"(a) When the injury or death for which compensation is payable under the workmen's compensation act was caused under circumstances creating a legal liability against some person other than the employer or any person in the same employ to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the workmen's compensation act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person."

If the employee does recover a judgment against a third party, the employer and its insurance company have a lien against the judgment in the amount of any compensation payments made to the employee:

"In the event of recovery from such other person by the injured workman or the dependents or personal representatives of a deceased employee by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien." K.S.A. § 44-504(b).

The case of Houk v. Arrow Drilling Co., 201 Kan. 81, 439 P.2d 146 (1968), is similar to this case in several respects and is crucial for our consideration. In Houk the plaintiff, after recovering workmen's compensation payments from his immediate employer, "Jake's Crew", sued Arrow for damages resulting from the same injury. Arrow counterclaimed against Jake's Crew claiming that its negligence was at least in part the cause of plaintiff's injuries.

The trial court found that Jake's Crew was indeed the "employer" of the plaintiff within the meaning of the Workmen's Compensation Act. The court then granted the motion of Jake's Crew for summary judgment, reasoning that § 44-501 prevented any recovery against Jake's Crew other than what plaintiff had already received under the KWCA.

At trial, the jury was specially instructed to determine the total amount of damages suffered by the plaintiff, and whether the injury was sustained due to (1) Arrow's negligence; (2) the negligence of Jake's Crew; (3) the combined negligence of both Arrow and Jake's Crew; or (4) the combined negligence of Arrow, Jake's Crew, and plaintiff. The jury chose the third alternative.

In an apparent effort to rectify what he perceived as inequities in the statutory system, the trial judge ordered: (1) that judgment be entered for the plaintiff and against Arrow for the total amount of damages found by the jury minus the amount the plaintiff had already received from Jake's Crew in workmen's compensation payments; and (2) that Jake's Crew could not enforce its lien (under § 44-504) to recoup the compensation payments it had made to the plaintiff.

The Kansas Supreme Court reversed and directed that judgment be entered against Arrow for the total amount of damages found by the jury and that Jake's Crew be allowed to enforce the lien. The following excerpts from (now Chief) Justice Fatzer's opinion seem to be pertinent to the instant case:

"The statute has been analyzed and construed many times and it has been held that the Workmen's compensation Act did not abrogate the common-law and statutory right of action against a negligent third party. (Roda v. Williams, supra 195 Kan. 507, 407 P.2d 471.) Further, section 44-501 fixes the liability of an employer to his employee where both parties are under the Act. The liability is in no sense founded upon tort, but is based upon the contract of employment and the statute, the terms of which are embodied in the contract. In short, the liability of an employer under 44-501 to provide compensation and medical aid to an employee injured in the course of his employment supersedes the employer's common-law liability for negligence. However, the Act does not attempt in any way to determine the rights of the employee with respect to the legal liability of `some person other than the employer' to pay damages, but permits the employee to pursue his common-law right of action for negligence caused by such `some other person.' (Moeser v. Shunk, 116 Kan. 247, 226 P. 784; Davis v. Reed, supra 188 Kan. 159, 360 P.2d 847; Roda v. Williams, supra; Rumbaugh v. Vonfeldt, 190 Kan. 798, 378 P.2d 5; Terrell v. Ready

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